How Does It Work?

by Michael Tobriner

How Does Collaborative Practice Work?

Each party chooses an attorney trained and qualified in collaborative practice. The parties and attorneys then hold an initial meeting to discuss how the collaborative process works and whether the parties are suited for it. If the parties are ready, they and the attorneys sign a Collaborative Agreement. The Collaborative Agreement commits the parties and attorneys not to initiate litigation while the collaborative process is ongoing. The Agreement also provides that if the collaborative process is not successful and the parties need litigation, the attorneys will withdraw and will refer the parties to litigation counsel.

Often at the initial meeting the parties, with the assistance of the attorneys, develop their overall goals for the case and identify concrete issues requiring resolution. (Such issues might include, for example, what should happen to the family residence, how should the parties divide their retirement assets, do the parties need a child or spousal support program, and so on.) At this meeting the attorneys discuss with the parties the use and function of divorce coaches.

Once the process is underway, the parties and attorneys assemble the information and documentation they will need to address the issues. Each case is different, but parties typically might need information about bank accounts, the family residence, retirement accounts, and each party’s income and projected living expenses. In bringing forward this information both parties must participate actively and in complete good faith. The parties must produce all necessary information and documentation; hiding or concealing information is unacceptable and will defeat the collaborative effort. Often at this phase of the case the parties and attorneys decide whether they need the assistance of outside experts, such as real property appraisers, business valuation specialists, or retirement experts.

Once all the information is on the table, the parties and attorneys develop options for resolving the issues. Collaborative practitioners refer to this process of developing options as “brainstorming”. The purpose is to seek out as many solutions as possible for dealing with the issues. The brainstorming process helps produce creative, thoughtful, and useful approaches to the problems in the case. The parties and attorneys then try to determine which of the options best serves the interests and goals of the parties. In this effort to achieve resolution the collaborative process envisions active, good faith bargaining, as well as fair and reasonable compromise.

When the parties have reached resolution, the attorneys draft a formal, written contract setting out the terms and conditions of the parties’ agreement. The parties and attorneys review the draft and sign the finished contract. The attorneys then assist the parties in obtaining a court judgment or other order for dissolution of marriage, separation, support, or other appropriate disposition. In many cases the parties may have decided to file court papers early in the collaborative process in order to expedite obtaining a judgment. In the court case the parties appear as self-represented.